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Gun Control Is Not the Cure for What Ails the U.S. Mental Health System, 104 J Journal of Criminal Law and Criminology Volume 104 Article 4 Issue 4 Symposium On Guns In America Fall 2015 Missing The aM rk: Gun Control Is Not The urC e For What Ails The .SU . Mental Health System Carolyn Reinach Wolf Jamie A. Rosen Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons Recommended Citation Carolyn Reinach Wolf and Jamie A. Rosen, Missing The Mark: Gun Control Is Not The Cure For What Ails The U.S. Mental Health System, 104 J. Crim. L. & Criminology 851 (2015). https://scholarlycommons.law.northwestern.edu/jclc/vol104/iss4/4 This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/15/10404-0851 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 104, No. 4 Copyright © 2015 by Northwestern University School of Law Printed in U.S.A. MISSING THE MARK: GUN CONTROL IS NOT THE CURE FOR WHAT AILS THE U.S. MENTAL HEALTH SYSTEM CAROLYN REINACH WOLF* & JAMIE A. ROSEN** Recent gun control legislation aimed at removing guns from the hands of the mentally ill in order to reduce violence is misguided. In fact, this only contributes to the mistaken belief that there is a direct link between mental illness and violence. This Article suggests that instead, policymakers should be focusing on modifying existing restrictive mental health laws and increasing the funding needed to provide adequate mental health services in the community. Family members, the community, and the individuals themselves must have access to adequate resources and support systems to increase the individual’s chance of recovery and stability. In light of recent tragedies, a better solution to reducing gun violence includes offering community programs and preventive training in educational and workplace environments to allow for early detection and * Carolyn Reinach Wolf is an Executive Partner in the law firm of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP in New York and Director of the firm’s Mental Health Law practice. She holds a J.D. from Hofstra University School of Law, an M.S. in Health Services Administration from the Harvard School of Public Health, and an M.B.A. in Management from the Hofstra University School of Business. Ms. Wolf’s practice concentrates in the areas of mental health and health care law. She represents mental health and health care professionals; major hospital systems and community hospitals; institutional and community outpatient programs; skilled nursing facilities; higher education institutions; and individuals and families. She may be reached via e-mail at [email protected]. ** Jamie A. Rosen is an Associate at Abrams Fensterman, where she practices Mental Health, Health Care, and Elder Law. She received her J.D. from the Maurice A. Deane School of Law at Hofstra University. She may be reached via e-mail at [email protected]. 851 852 WOLF & ROSEN [Vol. 104 intervention. The current system does not support those in need of treatment and only serves to exacerbate the stigma associated with mental illness. TABLE OF CONTENTS INTRODUCTION .......................................................................................... 852 I. UNDERSTANDING MENTAL ILLNESS ...................................................... 855 II. GUN CONTROL LAWS AROUND THE UNITED STATES .......................... 857 A. New York ................................................................................ 857 B. Illinois ..................................................................................... 860 C. Other State Gun Control Policies ............................................ 861 III. CONCERNS OF MEDICAL AND MENTAL HEALTH PROFESSIONALS ..... 863 A. Barriers to Seeking Treatment ................................................ 863 B. Threatening the Duty of Confidentiality ................................. 864 C. Alienating Those Who Need Treatment ................................. 865 IV. IMPROVING THE FLAWED MENTAL HEALTH SYSTEM ........................ 868 A. Allocating Resources and Increasing Access to Services for Mental Health Treatment at the State Level ........................... 869 B. Preventative Training and Behavioral Intervention Teams in Educational and Workplace Communities .......................... 872 C. Inconsistent Background Check Policies ................................ 875 CONCLUSION ............................................................................................. 877 INTRODUCTION Recent mass shootings such as those at a grocery store in Tucson, Arizona,1 an elementary school in Newtown, Connecticut2 and the Navy Yard in Washington, D.C.,3 have motivated state governments across the 1 On January 8, 2011, twenty-two-year-old Jared Lee Loughner opened fire outside a supermarket in Tucson, Arizona, killing six people and badly injuring then-Representative Gabrielle Giffords. Marc Lacey & David M. Herszenhorn, Congresswoman Is Shot in Rampage near Tucson, N.Y. TIMES, Jan. 9, 2011, at A1. 2 On December 14, 2012, twenty-year-old Adam Lanza fatally shot twenty children and six adults at Sandy Hook Elementary School in Newtown, Connecticut, and then committed suicide. James Barron, Gunman Massacres 20 Children at School in Connecticut; 28 Dead, Including Killer, N.Y. TIMES, Dec. 15, 2012, at A1; Sandy Hook Report Reveals Every Step Adam Lanza Took on Killing Spree, HUFFINGTON POST (Nov. 25, 2013, 3:16 PM), http:// www.huffingtonpost.com/2013/11/25/sandy-hook-report-_n_4337482.html, archived at http://perma.cc/D6D4-MWSL. 3 On September 16, 2013, thirty-four-year-old Aaron Alexis killed twelve people and wounded eight others in a mass shooting at a military facility at the Washington Navy Yard. Michael D. Shear & Michael S. Schmidt, 12 Shot to Death by Lone Gunman at a Naval 2015] GUN CONTROL & MENTAL ILLNESS 853 country to draft policies that would more strictly limit the gun rights of those with mental illness.4 These policies contribute to the belief that all individuals with mental illness are dangerous. These tragedies repeatedly renew the debate over gun regulations as the appropriate response to gun violence,5 instead of raising awareness that these incidents may have been prevented if the perpetrator had received timely treatment.6 Policymakers have not focused on treatment, modified existing restrictive mental health laws, or increased funding for mental health services. Instead, they have concentrated on gun control and taking guns out of the hands of people who suffer from mental illness or behavioral health issues, as well as requiring mental health professionals to report dangerous people to the authorities.7 The problem with tying mental illness to the gun control debate is that people assume those with mental illnesses are more prone to violence than those without these issues.8 The truth is that individuals falling into the category of “mentally ill” only account for a small fraction of all violent conduct.9 Simply having a mental illness is not a strong predictor of future violence.10 Individuals who have exhibited dangerous behaviors in the past, have a criminal record, or have a history of drug abuse, for example, are much more likely to commit future violent crimes.11 In fact, the risk of Base, N.Y. TIMES, Sept. 17, 2013, at A1; Michael Pearson et al., Navy Yard Shooting Survivor: ‘I Got Lucky’, CNN (Sept. 18, 2013), http://www.cnn.com/2013/09/18/us/navy- yard-shooting-main/, archived at http://perma.cc/SAB9-F7AS. 4 Michael Luo & Mike McIntire, When Right to Bear Arms Includes the Mentally Ill, N.Y. TIMES, Dec. 22, 2013, at A1. 5 Katherine L. Record & Lawrence O. Gostin, Dangerous People or Dangerous Weapons: Keeping Arms away from the Dangerous in the Wake of an Expansive Reading of the Second Amendment, ADMIN. & REG. L. NEWS, Summer 2012, at 8, 8. 6 Katherine B. Cook, Revising Assisted Outpatient Treatment Statutes in Indiana: Providing Mental Health Treatment for Those in Need, 9 IND. HEALTH L. REV. 661, 662 (2012). 7 See Luo & McIntire, supra note 4 (stating that the recent mental health debate focuses mostly “on two areas: requiring mental health professionals to report dangerous people to the authorities and expanding the mental health criteria for revoking gun rights”). 8 See Douglas Mossman, The Imperfection of Protection Through Detection and Intervention, 30 J. LEGAL MED. 109, 136 (2009) (“Most violence is not committed by persons with mental illness.”), quoted in Adam Lamparello, Why Wait Until the Crime Happens? Providing for the Involuntary Commitment of Dangerous Individuals Without Requiring a Showing of Mental Illness, 41 SETON HALL L. REV. 875, 891 (2011). 9 Marie E. Rueve & Randon S. Welton, Violence and Mental Illness, PSYCHIATRY, May 2008, at 35, 36. 10 See Consortium for Risk-Based Firearms Policy Recommends Evidence-Based Changes to State and Federal Gun Policies, DEV. MENTAL HEALTH L., Feb. 2014, at 1, 23. Predictors for future violence include “a history of violent crime, perpetration of domestic violence, alcohol abuse and drug abuse.” Id. at 3. 11 Id. See also James B. Jacobs & Jennifer Jones, Keeping Firearms out of the Hands of 854 WOLF & ROSEN [Vol. 104 violence, if any, by a person suffering from a serious mental illness may increase when the proper treatment, support, and medication are not available.12 Many shootings, whether
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